Pruitt v. State

• Decision Date: 03 December 1917
• Docket Number: 19967
• Citation: 76 So. 761,116 Miss. 33
• Court: Mississippi Supreme Court
• Parties: PRUITT, CONSTABLE v. STATE

76 So. 761

116 Miss. 33

PRUITT, CONSTABLE v. STATE

No. 19967

Supreme Court of Mississippi

December 3, 1917

Division A

APPEAL from the circuit court of Jones county, HON. PAUL B. JOHNSON Judge.

W. A Pruitt, a constable, was convicted of being drunk when called upon to perform a duty of his office and appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and case remanded.

R. L. Bullard, for appellant.

The demurrer to the indictment ought to have been sustained for two reasons: (A) It does not specify the official duty the defendant was called upon to perform; and, (B) It is not alleged that it occurred within the territorial limits of Pruitt's official authority.

It is elementary that whatever is necessary to be established in evidence is necessary to be alleged in pleading, and especially is this true in criminal law. The section of law in question makes it an offense for an officer to be drunk, "when called upon to perform the duties of his office." Now if it should be held that the offense is not complete if one is merely drunk when called upon to perform one or two of his official duties, then this indictment would be sufficient, for it charges, in effect that he was called upon to perform all the duties of his office at one and the same time. But this is absurd. No one will contend that guilt will not attach to any officer who is drunk when called upon to perform any duty of his office. Therefore, under the familiar rule that when indictments are drawn under statutes thus broad, the pleader must go beyond its mere wording to the specific act or thing, it was necessary to specify the particular act he was called to perform.

And it does not help the indictment that a bill of particulars was furnished. A bill of particulars, always largely within the discretion of the court, is designed to aid the defendant during the trial. It is of a temporary nature, may be amended, stricken from the record, withdrawn, modified or dealt with in many ways. When the trial is over, its office is done, while the indictment is a forever-lasting record, which together with the judgment, constitutes the defendant's bulwark against future prosecutions for the same offense, and in the performance of this office it stands alone.

The foregoing propositions, and their applicability, rest upon elementary principals of pleading and construction that are familiar, and as there is nothing here but for the court to determine whether or not the principal is of enough importance to necessitate a reversal. I will not discuss them further. I cannot contend that, so far as his counsel and the actual trial was concerned, the defendant was prejudiced thereby, but it does not follow that he may not be indicted again. Then he would experience the deep need of an indictment that was sufficiently specific.

I submit that for the failure of the evidence to show that he was called upon to perform any official duty, the defendant ought to be discharged, but that in any event the cause ought to be reversed.

Earl N. Floyd, for appellee.

The appellant interposed a demurrer to the indictment, the overruling of which constitutes the first of the alleged errors argued in his brief. He argues that the indictment is insufficient in that (1) it does not specify the official duty the appellant was called upon to perform; and (2) it is not alleged that it occurred within the territorial limits of Pruitt's official authority. The indictment, supra, alleges that on the 26th day of February, 1917, the appellant was called upon to perform the duties of the office, without describing further the specific duties in question. However, a bill of particulars was furnished by the state, as shown by page 8, of the record, setting out in full detail the nature of the duties, and the appellant cannot be heard to say that he was not sufficiently apprised of the nature of the accusation against him.

The evidence shows that the state offered abundant proof of the appellant's intoxication and that if the facts testified to be believed to be true, the appellant was beyond question in the condition of drunkenness contemplated by the statute under which he was indicted. The case presents no necessity for defining the twilight zone between exhilaration and intoxication as the evidence measures up to every requirement of the latter term, however, if the court desires authorities on this point, I refer them to the case of State ex rel. v. Baughn, 143 N.W. 1100 50 L. R. A. (N. S.) 912.

The whole evidence considered, I submit that none of the errors assigned by the appellant are well taken and that since the evidence shows rather conclusively that the appellant was drunk when he was called upon to attend to an official duty during the business hours of his office, the verdict of the jury and judgment of the court removing him from office should be sustained by this court.

OPINION

HOLDEN, J.

This is an appeal by W. A. Pruitt, a duly elected, qualified, and acting constable of the second district of Jones county, who was convicted on a charge of being drunk when called upon to perform the duties of his office. The record shows that a local justice of the peace issued a writ of attachment and delivered it to appellant to be served by him. Appellant did not serve the writ, but turned it over to a doctor whom he attempted to deputize to serve it; appellant claiming that he refused to serve it because it was void. It does not appear how the doctor could have made it valid. The state contended and offered...